Court To Bush !No Can Do!

Wiretap Ruling Affirms That Presidents Aren’t Monarchs

For the past five years, the Bush administration has operated as if the horrific events of 9/11 not only changed fundamental aspects of national security and public safety, but also changed the very nature of government.

President Bush has unilaterally declared what parts of new laws he wishes to enforce. He has created military tribunals unauthorized by Congress. And, perhaps most ominously, he has authorized eavesdropping on phone calls to and from the USA without court orders.

Bush has done these things by simply asserting that the powers of the presidency enumerated in Article II of the Constitution — particularly the clause making him the “Commander in Chief of the Army and Navy” — are much more sweeping than previously imagined. In short, he has acted like a king.

Fortunately, the courts have begun to rein in his royal ambitions. In June, the U.S. Supreme Court threw out the military tribunals. And on Thursday, federal Judge Anna Diggs Taylor struck down the warrantless surveillance program, finding it to be a violation of the First and Fourth Amendments and the principle of separation of powers. “There are no hereditary Kings in America,” she wrote.

The ruling by Taylor, who was appointed by President Carter, is far from the final word. The wiretapping program will continue while the administration appeals. It is not hard to see other courts ruling differently by saying that the plaintiffs, led by the American Civil Liberties Union, should not have been given standing to bring the case because they could not show they were harmed by the eavesdropping.

But the ruling does undermine Bush’s main argument — that the program is constitutional because the administration says it is constitutional. Taylor gives little credence to this argument, as one might expect from a representative of the judicial branch, the place where questions of constitutionality are properly resolved.

Since the Foreign Intelligence Surveillance Act was adopted in 1978, presidents have had an effective and constitutional way to speedy court approval for surveillance. FISA even allows for retroactive approval in urgent investigations.

If this law is overly restrictive or somehow unequal to the task of combating today’s global terror threat, the president can and should go to Congress to make the case for new legislation. Given the mood of the country and the continuing threat exemplified by the alleged airline bombing plot in Britain last week, Congress would surely make addressing the problem a priority.

By ignoring the law, and making specious arguments that powers contained in Article II make the president virtually unaccountable to either the courts or Congress, the president shows contempt for the other branches and exposes his determination to concentrate power within his own — with no particular gain for the war on terrorism.

Much has changed since terrorists rammed planes into the World Trade Center and the Pentagon. But one thing that has not is that America is a constitutional democracy with checks and balances. A ruling such as Thursday’s is a useful and forceful affirmation of that.